You are already involved in a divorce case or a family law case and you need the immediate assistance from the court for an urgent matter relating to your children?

You’ve heard of safeguard orders and you wonder what that is and how can it be suitable for you?

Well, you are reading the perfect article!

In this article, we will break down the safeguard order procedures in a simple and easy to understand way.

Are you ready?

Let’s get straight to it.

In this article we will look at the following:

1. What is a safeguard order?
2. What are the conditions needed to succeed with a safeguard order?
3. Is a safeguard order the same as an interim order?
4. What matters can a court resolve through a safeguard order?
5. Can you request more than one safeguard order?
6. How long does it take for the court to hear a safeguard order?
7. Can I see a judge within a few days if I have a family urgency and need a safeguard order?
8. What is the applicable rule of evidence for safeguard orders?
9. For how long is a safeguard judgment good for?
10. Conclusion on safeguard orders

1- What is a safeguard order?

A safeguard order is a judgment rendered by the court dealing with a highly urgent matter that without it an irreparable damage could be caused to the parties or family members such that a judgment at a later point in time could no longer remedy.

That was quite a mouthful!

How do we say that in plain English?

Ok, here we go.

Urgency and irreparable harm

For the court to render a safeguard order, or an urgent judgment, you must show to the court that if they don’t render a judgment immediately, you could no longer recover from it at a later point in time.

This will make more sense if we look at an example.

Example of Safeguard Order

Imagine that you are in dispute with your spouse and you just heard that your spouse intends to take the children out of school to move to another city.

What do you do immediately to prevent this from happening in the next few days?

The safeguard order route is the option that you should immediately pursue.

You can file a safeguard order and be heard very quickly by the court.

In this example, your demand will most likely be one to prevent the other parent from removing the children from school and taking them out of town.

Evidently, if the court does not render a judgment now and your spouse leaves with the children, then a judgment at a later point would not be able to remedy the harm to your children as they are already gone.

Although we don’t hope this for anyone, this example serves to show how a safeguard can be leveraged in a case of emergency.

2- What are the conditions needed to succeed with a safeguard order?

To succeed with a safeguard order, you must demonstrate the urgency whereby if the court does not immediately render a judgment, any further judgments will no longer be able to remedy the problem.

The conditions needed to succeed in a safeguard order are typically to show the urgency, an irreparable harm and an apparent right to make the demand that you are making.

In Quebec, when you are dealing with a recourse under the Civil Code of Quebec or the Divorce Act, we see quite often safeguard orders are requested in dealing with custody, access rights, child support, parental authority and spousal support.

Any form of alimentary demands or matters dealing with the parental authority relating to the well-being, progress and security of a minor child that is urgent will more likely be accepted by the court to be heard in the context of a safeguard order.

Let’s look at a child support request at the safeguard order level.

The case is urgent as child support is needed for the basic survival needs of a child, if the child support is not paid, then it can cause an irreparable harm to the child and finally the parent asking for the child support has a clear right in making such a demand being the custodian of the child.

3- Is a safeguard order the same as an interim order?

A “safeguard order” is used interchangeably with “interim order”.

We say “interim” order as an indication that this order, or judgment, is rendered for a temporary period of time.

Some may also refer to this safeguard order as a “temporary order” which means exactly what it says, a temporary judgment.

At the end of the day, a “safeguard order”, an “interim order” or a “temporary order” are all referring to the same legal vehicle which is to obtain an immediate and urgent judgment from the court. 

4- What matters can a court resolve through a safeguard order?

In family law cases in Quebec, married couples, civil union couples and de facto couples or common-law couples can ask for a safeguard order to resolve urgent family matters such as:

1. Child custody disputes
2. Access rights disputes
3. Parental authority disputes
4. Parenting arrangements 
5. Use of family residence
6. Removal of a child 
7. Child support and special expense disputes
8. Spousal support and compensation disputes

These requests can be made by way of a safeguard order whether your case is based upon the Civil Code of Quebec or the Divorce Act so long as there is an urgency and a possibility of irreparable harm.

If you have an urgent matter requiring you to seek immediate remedy from the court, you are encouraged to speak to a family lawyer on safeguard orders who can guide you through the process and assess whether or not a safeguard order can be suitable.

Most of the time, the urgency is such that there is not a lot of time to lose and so your lawyer can very quickly bring your case in front of a judge within a matter of days.

5- Can you request more than one safeguard order?

There is no set rule on how many safeguard orders a court may award in a case. 

As a result, a case may have more than one safeguard order depending on the level of dispute between the separating couple.

For example, in the beginning of your family law case you could ask for child support to be paid on an interim basis as the other parent is not paying for your child’s expenses.

Then, shortly thereafter, you find out the other parent intends to travel with the children to a dangerous country and you disapprove. 

You will potentially need to get another safeguard order to resolve this matter as well.

6- How long does it take for the court to hear a safeguard order?

The general rule is that a safeguard order can be presented to a judge by giving the other party a notice of ten (10) days. 

This means that when you prepare your safeguard order, you will serve the defendant or the other party a copy of your motion, and you give him or her a notice that your motion will be presented before a judge at a date no less than ten days of the date he or she receives a copy of your motion.

The law requires that you give a standard ten days so that the defendant or the other party has enough time to prepare a response to your motion and see how he or she will defend it.

7- Can I see a judge within a few days if I have a family urgency and need a safeguard order?

The law in Quebec requires that you give the other party at least ten days before you can present a motion for safeguard order to the court.

However, in some very very urgent matters where the ten days could be a detrimental delay, then you can ask for the court to hear your case but you must convince the court that the urgency is so grave that waiting the legally standard ten days is not feasible. 

This is commonly referred to as “asking the court for the abridgment of the notice delays”.

This is what is usually referred to as presenting a “double urgency” evidence.

In other words, you must present the urgency to justify that you do not give the standard ten days to the other party before a judge makes a decision, then you must prove the urgency justifying the court to award you a safeguard order if the case is heard.

8- What is the applicable rule of evidence for safeguard orders?

In the province of Quebec, when dealing with a safeguard order, the primary form of evidence is presented through the documentation that you will submit to the judge along with a written affidavit.

The courts will not render a judgment based on witnesses giving live testimonies but rather the witness testimonies must be presented in writing via a sworn statement or what used to be called an Affidavit.

The court, by just reading the sworn statements, seeing the exhibits and documents, of each party should already have all the information and facts necessary to render a judgment.

Your family lawyer can present a plea or give an oral explanation of your demands to the judge and this oral explanation must be based upon the facts submitted.

The courts will render judgments on safeguard orders on an expedited basis and so each case should not take for more than two hours to be read, pleaded and evaluated by the judge.

9- For how long is a safeguard judgment good for?

A safeguard order must have a very short life of no more than thirty (30) days approximately but may be extended or carried forward as needed by the parties.

The safeguard order is a mechanism that bridges the gap between an urgent situation and the next important hearing planned in your case timetable which is either a hearing on provisional measures or on the merits.

The hearing on provisional measures and the hearing on merits are “planned” trial dates and they are scheduled right from the inception of the legal proceedings.

Safeguard orders are not “planned” hearings but an unexpected or unplanned event that requires the court to render a judgment very quickly. 

If, in the context of your court case, you still have not reached the trial on provisional measures, then the safeguard order will be good until the judgment on provisional measures is issued.

If you already have your judgment on provisional measures and the next planned trial date is the final hearing on the merits, then the safeguard order will be good until the final judgment is issued.

The above is a typical scenario but bear in mind that the judge has the power to set any timeline for the safeguard order. 

If the judge says that the order is good for thirty days after which it will expire, then that will be the case. 

In such cases, before the judgment expires, you will need to ask the court to extend the term if you believe that you need the judgment to be extended for more time.

These are strategies that should be reviewed and evaluated with your divorce lawyer or family lawyer as they will know what can be the best option for you based on the nature of your case. 

10- Conclusion on safeguard orders

We hope that this article helped shed some light on what is a safeguard order, how it can be used and how it could be useful in the context of your family law case.

Whether we call it a safeguard order, interim order or temporary order, what we are referring to is a request to the court for the issuance of an immediate and urgent judgment dealing with a matter that must be remedied immediately if not irreparable harm can be suffered.

Considering the speed of execution and accuracy of your evidence is crucial to succeed in getting awarded a safeguard order, you are better off getting a consultation from a family lawyer or a divorce lawyer to guide you through the process or represent you in court.

At our law firm, our family lawyers work around the clock on family matters and can be your advisors in supporting you through this process.

You are welcome to contact us at any time for any legal advice or services in regards to a safeguard order in Quebec.

We wish you all the best in your family law journey.

FamilyLawyer.Zone

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Ever wondered what are the different stages in a family law court proceeding like a divorce case, dissolution of legal proceeding or legal separation?

You’ve filed for a divorce or got served with court papers and now wondering what are the next steps in your family law legal journey?

In this article, we will look over the different stages in a family law court proceeding from the filing of a court application all the way to the rendering of a final judgment.

A typical family law court proceeding will generally involve nine steps or milestones to achieve a final judgment and these steps are:

1. Filing of the court demand
2. Service of legal papers to defendant
3. Initial presentation of the case at court
4. Filing of a case protocol
5. Safeguard orders
6. Provisional orders
7. Declaration of file readiness for trial
8. Trial on merits
9. Judgment from the court
10. Conclusion on family court proceedings

Keep reading as we will go into each of these steps in more detail.

1. Filing of the court demand

The first step in a family law court case is the filing of a demand. 

In Quebec, in legal jargon, we refer to this as a “demand originating proceedings”. 

For example, if you intend on filing a divorce application, then you must draft a divorce application in accordance with the rules of procedure if the Court.

When your divorce application is ready, it must be “filed in court”.

Filing in court is simply depositing the original version of your divorce application in the records of the court and getting a court file number attributed to your case.

The final formality in the initial filing of your court application is to pay a court filing fee, or court costs, associated with the type of application you are filing.

The court cost will be confirmed to you by the court clerk situated at your local courthouse.

Generally speaking, the above process applies to most legal applications or demands filed before the courts in Quebec in family law, such as legal separation, dissolution of a civil union, child support or child custody applications.

2. Service of legal papers to defendant

Once you have deposited the original of your court application in the record of the court, paid your court stamp and obtained your court file number, or docket number, you are ready to serve your papers to the other party.

The service of legal papers is a process by which you will send a certified copy of your court papers to your former spouse or defendant and obtain proof that he or she in fact received the papers.

The service of your court documents will be initially done by a bailiff, or a process server as it is generally called in common law jurisdiction.

The bailiff is a professional tasked with the mandate of delivering your court papers to the defending party and providing a report of the date, time, place and name of the person who received the court papers.

The facts and statements made by the bailiff with respect to the actual service is admitted in court without much objection as such document is legally considered an authentic act.

The legal papers you send the defendant must contain a summons. 

The summons is the document that legally calls the defendant to take an action in response to the lawsuit served and such action is defined by law as follows under article 145 of the Civil Code of Procedures of Quebec:

The plaintiff summons the defendant before justice by means of a summons attached to the application. The summons includes a list of the exhibits in support of the application and informs the defendant that they are available on request.

The defendant must answer the application within the following 15 days, failing which a default judgment may be rendered and the legal costs awarded against the defendant.

The defendant must respond within fifteen days from the receipt of the summons and disclose his or her intention to negotiate a settlement or establish a case protocol for the orderly progress of the legal proceedings.

Failure to respond within fifteen days, the plaintiff may request from the court the rendering of a default judgment which is something the defendant can easily avoid.

3. Initial presentation of the case at court

Now you are advancing your lawsuit journey.

You have successfully served your former spouse or defendant.

So what’s next?

The next step is for the initial presentation of your court case before a judge.

This initial presentation is not a date where a judge will render a final judgment on your case but a date where the court demands that the plaintiff and defendant agree on a case protocol.

At the initial presentation of the case, the judge will have the role of a coordinator as opposed to a trial judge.

The judge will see, in summary fashion, the nature of the dispute and what the parties intend to do in light of preparing the case for readiness to be heard by a trial judge.

The judge will ensure that what the parties ask is reasonable and proportionate in consideration of the nature of dispute, sums involved and overall complexity of the file.

4. Filing of a case protocol

A case protocol, as its name suggests, is a timetable of different activities that each party wants and is authorized to perform, directly or through their lawyers, and the various milestones legally required to be satisfied so that a legal case is declared to have the readiness to ultimately go to trial.

The law defines the case protocol as follows:

The parties are required to co-operate to either arrive at a settlement or establish a case protocol. In the case protocol, the parties set out their agreements and undertakings and the issues in dispute, indicate the consideration given to private dispute prevention and resolution processes, describe the steps to be taken to ensure the orderly conduct of the proceeding, assess the time completing these steps could require and the foreseeable legal costs, and set the deadlines to be met within the strict time limit for trial readiness.

The novelty of the case protocol in Quebec is that the lawyers and the parties must assess the foreseeable legal costs associated with the completion of each legal step required.

For example, if a party demands to obtain an expert’s opinion, then, the foreseeable costs associated with that must be disclosed.

The main reason why the law requires a case protocol to be implemented to govern the proceedings is to ensure that the parties are accountable to do what’s needed within a specified timeline and that the file harmoniously progresses and is ready to be tried.

Ideally, the parties themselves will agree on the content of the case protocol and file the mutually signed version in the record of the court.

However, in cases of disagreements, the parties will then submit their sources of contention and arguments to the court and the judge will decide on the matter.

We typically refer to this as “case management”.

5. Safeguard orders

In family law cases, safeguard orders may be very important if not crucial in dealing with a highly urgent matter that must be resolved immediately.

A safeguard order is an urgent demand made by one party in a court proceeding to request assistance from the court in dealing with an urgent matter that cannot wait until the trial date in many months or years.

For instance, a spouse may file for divorce and at the same time immediately ask for a safeguard order with respect to parenting rights, parenting time and child support as the ex-spouses cannot agree on these topics to the detriment of the children.

This will be the case when the spouses are in dispute regarding who will keep custody of the children and who should pay for the children’s expenses.

Imagine if you don’t work and you depended on your spouse to pay your children’s expenses and school fees, and if payment is not made in the next few weeks, your child will be deprived of his or her education, then this is a scenario that will warrant filing for a safeguard order.

Safeguard orders can be essentially on any topic of important urgency and where an irreparable harm may be caused if the court does not render and immediate judgment.

6. Provisional orders

While safeguard orders are valid for a very short period of time and are intended to provide remedy for a highly urgent matter in the immediate, provisional orders are a type of judgment that will govern the parties for the entire duration of the legal proceedings.

A typical contested divorce case or legal separation case can take potentially two to three years to complete.

As a result, if you have to take care of your children and continue paying for the family expenses, take care of the family residence and do many activities to transition out of your relationship, a provisional order is useful to ensure that you and your ex-partner have clarity on your obligations so to avoid further dispute.

A provisional order will generally cover the parenting obligations, child support, spousal support and use of family assets like the family residence, furniture and so on.

The provisional order is not intended to deal with matters such as partition of assets and the accessory measures to a divorce, legal separation or dissolution of civil union.

Such legal matters will be dealt with by the trial judge at the final hearing on merits.

In most cases, when a divorce application or legal separation application is filed, a motion for provisional measures will also accompany the main application.

In fact, the defendant will receive two motions, the divorce application along with a motion for provisional measures.

In this instance, the divorce application will deal with the spouse’s demands on the merits of the case and the provisional motion will seek to obtain a judgment on the important matters for the duration of the proceedings.

7. Declaration of file readiness for trial

When all the legal tasks and activities are performed to the satisfaction of the parties and to the extent authorized by the court as per the case protocol, the parties must eventually declare the file ready to proceed to trial.

This declaration of file readiness is important as the court will review the file and ensure that all the exhibits, documents and material that the parties wish to present to a judge have in fact been filed and disclosed to the other party.

When you declare your file as ready for trial, this means that you have gathered all the evidence that you need, like documents, contracts, e-mails, written statements, you have done any expertise or obtained expert evaluations and reports, like accounting expertise, property evaluations, psychosocial evaluations or other, and you have done any out of court examinations that was needed for your case.

When declaring the file ready, the parties must also disclose the name of witnesses they intend on calling to trial, disclose the nature of their testimony along with how long each party anticipates examining and cross-examining each witness.

With this assessment, the court can estimate the number of days needed for trial before a judge and eventually book you for trial.

8. Trial on merits

You have now reached the stage where you must proceed to the trial on the merits of your case.

You may have waited six months, two years, four years or maybe longer to get to this point.

The trial day is a significant date as it is the day where each party will expose their case, present their evidence to the court and provide their pleadings to the judge in an attempt to sway the decision of the judge in their favor.

The success of the trial on the merits will depend on many factors that go beyond the documents and evidence filed in the record of the court.

From our perspective, half of the battle is fought in the several years leading to the trial date but the other half, which is quite significant, is fought in the several days of trial that you have been given to present your case and convince a judge of your position.

If you are successful in trial, even if your case may not have been a home run on paper, you increase the likelihood of your overall success.

The reverse is also true.

You may have a good case on paper but due to a poor performance and inadequate preparation for trial, you may walk away highly disappointed.

9. Judgment from the court

When you have presented your case to the judge during trial, all the witnesses heard, all exhibits presented to the judge and each party’s plea heard by the judge, the court will then consider all the facts and legal argumentation to render a judgment.

In most cases, when a judge hears a case on the merits, the judge will take the case under advisement and render a judgment at a later point in time.

Judges have up to six months to render their judgment once trial is over.

When the court deals with safeguard orders, the court’s decision will generally be rendered on the bench.

With regards to provisional judgments, in most cases, the judge will render a decision at the end of the hearing and will orally read his or her judgment that will ultimately be drafted and sent to the parties.

With regards to a judgment on the merits, when the judgment is rendered, that decision will put an end to the legal proceedings in the first instance.

The first instance is the first court that was seized with the legal application.

For instance, if you intend on filing a divorce, the first instance court is the Superior Court of Quebec in the province of Quebec as that’s where the initial divorce application will be filed.

If the judgment on the merits is not appealed within thirty days of it being rendered, then the legal case is definitively resolved and closed.

The judgment on merit will be sent to your lawyer if you are represented and sent by mail if you are self-representing.

10- Conclusion on family court proceedings

In this article, we wanted to share with you the typical court process when dealing with a family law case such as a divorce, legal separation or dissolution of civil union.

We hope this article was informative for you.

Should you need any further information, need legal representation or legal advice, we invite you to contact our law firm dedicated to family law cases.

We can support you with your court process and legal proceedings to ensure that every step of your case is handled with care and diligence so that you put all the chances on your side.

We look forward to working with you.

Alternatively, we invite you to continue reading the great resources and legal information we make available to you and our clients through our website.

FamilyLawyer.Zone

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